1. The author of the
communication, dated 16 March 1988, is Aapo Järvinen, a Finnish citizen born
in February 1965, who claims to be the victim of a violation of article 26
of the International Covenant on Civil and Political Rights by Finland. He
is represented by counsel.

THE BACKGROUND

2.1 In Finland, until the
end of 1986, applications for exemption from military service were dealt
with under the Act on Unarmed and Civilian Service. Under this legislation,
conscripts whose religious or ethical convictions did not allow them to
perform their compulsory military service as armed service in accordance
with the Conscription Act could be exempted from such service in times of
peace and be assigned to unarmed or to civilian service. The duration of
military service is eight months. The duration of unarmed service was 11
months, to be performed in the Defence Forces in duties not involving the
carrying of arms. Civilian service lasted 12 months, to be performed in
government civilian service, in the municipalities or in hospitals.

2.2 Under the law in force
until the end of 1986, a written application as well as the genuineness of
an applicant's religious or ethical convictions were examined by a
particular examination board. At the end of 1986 this procedure was
abolished by Act. No. 647/85, the Act on the Temporary Amendment to the Act
on Unarmed and Civilian Service and applicants are now assigned to civilian
service solely on the basis of their own declarations. The duration of
civilian service was set at 16 months. The ratio legis for the amendment
reads as follows:

"As the convictions of
conscripts applying for civilian service will no longer be examined, the
existence of these convictions should be ascertained in a different manner
so as not to let the new procedure encourage conscripts to seek an exemption
from armed service purely for reasons of personal benefit or convenience.
Accordingly, an adequate prolongation of the term of such service has been
deemed the most appropriate indicator of a conscript's convictions".

2.3 On 9 June 1986, the
author, who had been called upon to report for military service, submitted a
written statement to the competent authorities stating that his ethical
convictions did not permit him to perform armed or unarmed service in the
Finnish Defence Forces. The headquarters of the military district of Tampere
transmitted the author's statement to the Investigation Board on 8 December
1986. The Board failed to take a decision before the expiration of its
mandate on 31 December 1986, and the documents were returned to the
headquarters, from where the matter was referred to the Commander of the
military district for consideration under the implementation order of Act.
No. 647/85.

2.4 In January 1987, the
author submitted a new application for exemption from military service; this
was accepted in February 1987. On 9 June 1987, the author started
alternative civilian service. Under the new provisions referred to above,
the term of civilian service is determined in accordance with the provisions
in force at the time of the service order. Accordingly, Mr. Järvinen's term
of service was 16 months, because he did not receive the order assigning him
to alternative civilian service until the amendment became effective. In
reply to a complaint of discrimination filed by the author, the
Parliamentary Ombudsman of Finland, on 17 February 1988, concluded that
there had been no evidence of any intention on the part of the authorities
deliberately to prolong the procedure in Mr. Järvinen's case; had his case
been considered in the course of 1986, his ethical convictions would have
had to have been considered, with the possibility of failing to persuade the
authorities of their genuineness.

2.5 Certain categories of
individuals are exempt from military or alternative service in Finland. An
Act on the Exemption of Jehovah's Witnesses from Military Service has been
in force since the beginning of 1987. Under this Act, the service of a
conscript who adheres to the religious community of Jehovah's Witnesses may
be deferred until his 28th birthday; after that he may be exempted from
military service in times of peace. This means that, in practice, Jehovah's
Witnesses do not have to perform any type of military or alternative
service.

THE AUTHOR'S ALLEGATIONS

3.1 The author considers
that he has been the victim of discrimination, since individuals who choose
alternative service are required to serve for 16 months, whereas the term of
military service is only eight months. While he concedes that the previous
term of 12 months for alternative service was not necessarily discriminatory
within the meaning of article 26 of the Covenant, he argues that a
prolongation from 12 to 16 months is not justified and constitutes
discrimination. A period of 16 months is disproportionately longer than that
applicable to military conscripts, being twice as long. In the author's
opinion, the Finnish. Government has failed to adduce valid arguments to
establish the proposition that increasing the period of alternative service
to 16 months is a reasonable, non-discriminatory measure, proportionate to
the stated objective; moreover, the determination of the new term of
alternative service was not based on any empirical research but was selected
arbitrarily. To the author, the stated ratio legis of the legislative
amendment, Act. No. 647/85, is indicative of the Government's intention to
introduce some punitive element in the prolongation of alternative service.

3.2 It is pointed out that
the earlier term of alternative civilian service, 12 months, was in fact
based on an argument of proportionality. The author refers in this context
to government bill No. 136 on unarmed and civilian service, which had been
presented to Parliament in 1967. Under the initial proposal, civilian
service would have lasted six months longer than military service, i. e., a
total of 14 months. The parliamentary Defence Matters Committee shortened
the term of civilian service to 12 months, considering that the proposed
term for alternative service was "unreasonably long", and that it was
inappropriate to treat conscripts who had opted for unarmed or civilian
service in a considerably more disadvantageous way than others. Accordingly,
the Committee proposed to set the duration for unarmed service at 11 months
and for civilian service at 12 months.

3.3 The author adds that
if one were to compare the situation of conscientious objectors in Finland
with that of conscientious objectors in other Western European countries, it
would be apparent that a term of civilian service twice as long as that of
armed military service is disproportionate to the aim of the measure, as in
all those countries except one, civilian service usually lasts as long or
only somewhat longer (up to 50 per cent longer)than military service. This
is true not only of Western Europe but also of Poland and Hungary, which
recently passed legislation governing civilian service.

3.4 In respect of the
State party's argument that the simple abolition of the examination
procedure for conscientious objectors might encourage conscripts to seek
exemption from armed service on grounds of personal benefit and convenience,
the author submits that the criteria for any differentiation in the
term(s)of service are neither reasonable nor objective, as the prolongation
of the term of service is applied to all groups of conscientious objectors
except for one specific group, Jehovah's Witnesses, who are exempt from all
forms of service. Under the current system, serious religious or ethical
objectors are punished by an excessive prolongation of their service, while
some seeking personal benefit or convenience opt for the shortest possible
term of armed service, eight months. In the author's opinion, such criteria
of differentiation cannot be considered reasonable and objective, as the
entire burden is placed on those objectors whose genuineness of convictions
has never been at issue. Further, for such objectors the matter is not one
of choice but is inherent in their philosophy.

THE STATE PARTY'S COMMENTS AND
OBSERVATIONS

4.1 Referring to the
Committee's decision in communication No. 185/1984, 11 the State party
argues that inasmuch as States parties do not have any obligation to provide
for alternative service, they may, whenever they do provide for such
alternative service, determine its conditions as they see fit, provided that
these conditions do not per se constitute a violation of the Covenant. .

4.2 Invoking the ratio
legis of Act No. 647/85, the State party contends that the duration of
civilian service, although admittedly longer than that of armed conscripts,
does not indicate any intention of, or actual, discrimination vis-a-vis
civilian servicemen within the meaning of article 26 of the Covenant.
Inasmuch as the specific circumstances of the author's case and the
examination of his application of June 1986 are concerned, the State party
considers that on the basis of the facts, and in the light of the opinion of
the Parliamentary Ombudsman of 17 February 1988, the determination of his
term of civilian service took place in accordance with Finnish law and with
article 26 of the Covenant.

4.3 In respect of the
general exemption of Jehovah's Witnesses from any form of service, the State
party points out that the Act on the Exemption of Jehovah's Witnesses from
Military Service was passed in accordance with section 67 of the Parliament
Act, which lays down the procedural requirements for the enactment of
constitutional legislation, and affirms that the Act cannot be regarded as
discriminatory within the meaning of article 26 of the Covenant.

ISSUES AND PROCEEDINGS BEFORE
THE COMMITTEE

5.1 On the basis of the
information before it, the Committee concluded that all conditions for
declaring the communication admissible had been met, and that, in
particular, it was agreed between the parties that available domestic
remedies had been exhausted, pursuant to article 5, paragraph 2 (b), of the
Optional Protocol.

5.2 On 23 March 1989, the
Human Rights Committee declared the communication admissible.

6.1 Article 8 of the
Covenant makes clear that "service of military character" or "national
service required by law of conscientious objectors,, is not to be regarded
as forced or compulsory labour. The Committee notes that the new
arrangements, whereby applicants are now assigned to civilian service solely
on the basis of their own declarations, effectively allows a choice as to
service and departs from the previous pattern of an alternative civilian
service for proven conscientious objectors. Accordingly, any issue of
alleged discrimination falls under article 26 rather than under article 2,
paragraph 1, in relation to article 8.

6.2 Thus, the main issue
before the Committee is whether the specific conditions under which
alternative service must be performed by the author constitute a violation
of article 26 of the Covenant. That the Covenant itself does not provide a
right to conscientious objection does not change this finding. Indeed, the
prohibition of discrimination under article 26 is not limited to those
rights which are provided for in the Covenant.

6.3 Article 26 of the
Covenant, while prohibiting discrimination and guaranteeing equal protection
of the law to everyone, does not prohibit all differences of treatment. Any
differentiation, as the Committee has had the opportunity to state
repeatedly, must however, be based on reasonable and objective criteria.

6.4 In determining whether the
prolongation of the term for alternative service from twelve to sixteen
months by Act. No. 647/85, which was applied to Mr. Järvinen, was based on
reasonable and objective criteria, the Committee has considered in
particular the ratio legis of the Act (see paragraph 2.2 above) and has
found that the new arrangements were designed to facilitate the
administration of alternative service. The legislation was based on
practical considerations and had no discriminatory purpose.

6.5 The Committee is,
however, aware that the impact of the legislative differentiation, works to
the detriment of genuine conscientious objectors, whose philosophy will
necessarily require them to accept civilian service. At the same time, the
new arrangements were not merely for the convenience of the State alone.
They removed from conscientious objectors the often difficult task of
convincing the examination board of the genuineness of their beliefs; and
they allowed a broader range of individuals potentially to opt for the
possibility of alternative service.

6.6 In all the
circumstances, the extended length of alternative service is neither
unreasonable nor punitive.

6.7 Although the author
has made certain references to the exemption of Jehovah's Witnesses from
alternative or military service in Finland, their situation is not at issue
in the present communication.

7. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the terms of alternative service imposed on Mr. Järvinen by Act No.
647/85 do not disclose a violation of article 26 of the Covenant.

pursuant to rule 94, paragraph
3, of the Committee's rules of procedure,

concerning the views of the
Committee on communication No. 295/1988,

Jarvinen v. Finland

We share the view expressed by
the majority of the Committee that the present case is to be considered
under article 26 of the Covenant, as well as the view that the same article
does not prohibit all differences of treatment, provided that a
differentiation be based on reasonable and objective criteria. However, we
do not share the view that reasonable and objective criteria exist in the
present case.

A consideration of the ratio
legis of the Finnish Act 647/85 discloses that the difference of duration
between military and civilian service is not based on objective criteria,
such as a more severe type of service or the need for a special training
required in order to accomplish the longer service. The ratio of the law is
rather to replace the earlier method of testing the sincerity of an
applicant's conscientious objection with a procedure based on administrative
convenience, whereby the longer duration of the civilian service results in
a sanction against conscientious objectors. Such longer duration constitutes
in our view a difference of treatment incompatible with the prohibition of
discrimination on grounds of opinion enshrined in article 26 of the
Covenant.

of the Committee's rules of
procedure, concerning the views of the Committee

on communication No. 295/1988,
Jarvinen v. Finland

Article 6 of the International
Covenant on Economic, Social and Cultural Rights recognizes the right of
everyone to gain his living by work which he freely chooses or accepts. The
objective of article 8 of the Covenant on Civil and Political Rights is the
protection against being forced to carry out work which one has not freely
chosen. However, exception is made for any service of military character
and, in conjunction herewith, for any national service required by law of
conscientious objectors. As the national service in question is meant to
replace military service, the question of equality before the law arises, as
explained in paragraphs 6.1 to 6.3 of the Committee's views. I concur in the
opinions expressed in these paragraphs. When considering the question of
equality before the law, the natural starting-point for me is everyone's
right freely to choose his work and the time to devote to it and the fact
that the object of national service is a replacement of military service.

The ratio legis of Act No.
647/85 (see para. 2.2 of the views) was that, by choosing to prolong service
time by as much as 240 days, the effect would be to discourage applicants
without sincere and truly genuine convictions. Looked upon exclusively from
the point of view of deterrence of objectors without genuine convictions,
this method may seem both objective and reasonable. However, from the point
of view of those for whom national service had been established in place of
military service, the method is inadequate and runs counter to its purpose.
As the Committee observes in paragraph 6.5, the impact of the legislative
differentiation works to the detriment of genuine conscientious objectors
whose philosophy will necessarily require them to accept civilian service,
no matter how long it is in comparison to military service. From this
finding, I draw the conclusion, contrary to the Committee, that, not only is
the method inadequate in relation to its very purpose to make it possible
for those who, for reasons of conscience, are unable to discharge their
military service, to discharge their civilian service instead. The effect of
this practice is that these persons will be compelled to sacrifice a greater
degree of their liberty in comparison with those who are able to discharge
their military service on the basis of their beliefs.

In my view, this is unjust and
runs counter to the requirement of equality before the law laid down in
article 26 of the Covenant. The differentiation in question is, in my view,
based on grounds that are neither objective nor reasonable. Nor does it, in
my opinion, comply with the provisions of article 18, paragraph 2, which
state that no one shall be subject to coercion which would impair his
freedom to have or adopt a religion or belief of his choice. Obliging
conscientious objectors to perform 240 extra days of national service on
account of their beliefs is to impair their freedom of religion or their
freedom to hold beliefs of their choice.

I am therefore of the view that
the terms for perfor-mance of national service, in place of military
service, imposed on Mr. Järvinen by Act No. 647/85, disclose violations of
articles 18 and 26 in conjunction with article 8 of the Covenant.